from the chilling-effects dept

Kickstarter provides a way for creators to route around the strictures of traditional publishing industries for a variety of reasons. We've seen Double Fine break the bank on Kickstarter, after getting a lot of blank stares from publishers who didn't think there was a market for point-and-click adventure games. We've seen top Hollywood talent fund a film on Kickstarter to ensure no studio execs would be meddling with their movie. Now, in what I think is a first, we've got a parody author turning to Kickstarter after his publisher dropped the project, citing fear of a legal backlash.

Michael Gerber already had some published parodies under his belt (most recently the Barry Trotter series, from Gollancz, which also publishes spoofs like Bored of the Rings) when he was approached by a major publisher for his take on TV drama Downton Abbey. The writing was complete and the contracts were almost signed—but as he puts it:

And then somebody in New York started… thinking.

“What if [Downton Abbey creator] Julian Fellowes gets mad?”
“What if they hire another company to publish the official Downton Abbey Calendar/Tea Cozy instead of us?”
“What if I make the wrong decision and get fired?”

So even though Downturn Abbey is the most fun I’ve ever had writing a spoof, Mr. Big Publisher changed his mind and offered me a couple bucks to shred the manuscript.

The hell with that! I like this book too much to kill it.

So, rather than accept the kill fee, Gerber is trying to self-publish the book with crowdsourced funds—and with over 50% funding only a few days into the campaign, it looks likely that he'll hit his (relatively modest) goal of $3,500. It's interesting to see a publisher's legal panic serving as the prime motivation for a Kickstarter project. In the "Risks And Challenges" section that Kickstarter now requires on all projects, Gerber directly addresses the legal question, and takes an admirably principled stance:

Now, some of you might be thinking, "Won't he get sued?" I've been doing this professionally since 1991, and so far, so good. Parody — particularly print parody — has a very robust precedent, and I've specifically written Downturn Abbey to fall within it.

...

A right only exists if you exercise it, and one of the biggest reasons I'm crowdfunding this project instead of taking the kill fee is to assert the right to critique our shared culture via parody. Media corporations will extend their rights relentlessly, so if you like parody — in any medium — it's important to support it in print, because this is where it is most vulnerable. Nobody's suing Jon Stewart, but if parody gets rolled back, that's the logical next step. Downturn Abbey is a harmless bit of fun for fans of the show and the era, but if it can be suppressed out of corporate risk-aversion, sooner or later that attitude will have a chilling effect on the rest of comedy.

Unfortunately, due to the nature of copyright lawsuits and fair use defenses, it would cost a lot more than $3,500 to defend his stance in court. Hopefully, though, it won't ever come to that—the creators of (and anyone else with a copyright stake in) the show would hopefully realize that there's little point (and less honor) in trying to squash out parodies of this nature. However, Gerber's move also highlights the associated problem: even when something is as well-protected as parody, copyright law can have a huge chilling effect by making publishers nervous. Kickstarter and other tools for creators are, at least, helping to combat this—for a publisher, standing behind a parody is just another risk factor in the spreadsheet; for Gerber, it's a matter of standing up for his rights.

I'm currently reading a book by Terry Pratchett called "Interesting Times" and the point is made that there's something worse than a whip to a slave, it's when a population so effortlessly enslaved that they've internalized the whip.

“What if [Downton Abbey creator] Julian Fellowes gets mad?”
“What if they hire another company to publish the official Downton Abbey Calendar/Tea Cozy instead of us?”
“What if I make the wrong decision and get fired?”

All of the above tells me that someone in the publishing industry has internalized the whip.

Parody should be iron clad

We'd always had the impression that in the U.S. at least, parody was almost bullet-proof when it came to copyright law, so the original publisher's anxiety here is some cause for an inquiry of concern. And now that we're on it, how does the status of parody compare in Canada, Europe and elsewhere?

The Cost of Winning

Because under US law each side bears their own costs, it is possible for a rich company to use the law to bankrupt a smaller company if the can find enough pretexts to sue them. This can be enough to bully a smaller company into doing, or not doing what the bully wants. The question then becomes do can we make enough money to make a profit after the legal costs of fighting.

When there is a culture of fear, there is cause for alarm. Anyone who delves even a little bit into history can tell you that. If people are scared to release works because they may be infringing on a copyright somewhere in the country, or the world, there is something indisputably wrong.

I am personally glad that the internet has raised a generation of people who hate copyright laws. It means conditions are set for probable revolution. You can see it in the Pirate Party, revolts against dumb legislation like SOPA, etc and they are leading to moments of madness, such as EMI literally trying to stamp on free trade by trying to forbid the resale of digital downloads on the premise that their own consumers are guilty until proven innocent. It's insufferable. And you've also got Steam and other gaming publishers trying to eliminate the concept of swapping games with one another by likewise monopolising over free trade with everyone-pays schemes. Not to mention that the monopolisation of closed-systems like iOS as a means of pursuing this idea further... Just wait until DVDs, books, music CDs etc stop selling so that everyone is forced to buy closed systems where all media is tagged, monitored, you have to be online to experience any creativity, and it becomes impossible to publish and make money without surrendering your copyright to someone for them to override (short of self-publishing, which sets up an unfair marketing principle). Then watch as the lobbying pressure to make illegal open-source systems (and open-source software, and hell the public domain entirely) becomes enormous, because it poses as the "bigger threat".

Kickstarter proves that the free-rider problem in artistic expression is no longer an issue. These guys are going to be the centre of the revolution, not Spotify or Netflix in my opinion. And once corporate promoters start jumping on the bandwagon and making profits for raising awareness of certain projects, you will start seeing people paying not for the making of artistic content, but the RELEASE of the content with the funds going to make NEW content, which in turn will be released if it raises enough money. I predict that this will be Kickstarter's major change in the future.

All-or-nothing crowdfunding has technically been around since the whole idea of music gigs, theatre gigs, cinema viewings, etc. Because if many people pay for a ticket, and the showing doesn't happen due to unforeseen circumstances, they can get their money back. By definition, that is all-or-nothing crowdfunding. The internet has now "increased the stadium size" if I can use that expression, or the "cinema size", or the "theatre size". Money for creativity was meant to be raised not by focusing on the copies themselves, but by expanding the platform of your audience and getting them all to pay simultaneously. "Virtual tickets" is going to be the way to go. And history seems to be on it's side: Youtube, Live Streaming, Radio Podcasts, Blogging...

Is there anyone here who doubts that Justin Bieber would make a lot more money under Kickstarter than he would under a label, simply for releasing a new album he had stored away ages ago? Or what if he did another version of "Baby" using crowdfunding? What if he charged for a live broadcast of it over LiveStream for X number of viewers? Complete with a bonus price for interaction with him and song requests?

If I were a big copyright lobbyist, the first thing I would do is try to make crowdfunding illegal right now. Or try to patent it, like someone tried with Kickstarter not long ago. This war is coming and you'd better be ready for it.

FUD?

Gerber's move also highlights the associated problem: even when something is as well-protected as parody, copyright law can have a huge chilling effect by making publishers nervous.

But then this, from earlier:

“What if [Downton Abbey creator] Julian Fellowes gets mad?”
“What if they hire another company to publish the official Downton Abbey Calendar/Tea Cozy instead of us?”
“What if I make the wrong decision and get fired?”

Seems to me that copyright had little if not nothing to do with the publisher's decision. As mentioned in the quote I highlighted, the publisher was afraid Fellowes would take his licensing business elsewhere.

I'm not sure how you shoehorn copyright and "chilling effect" into all that. Seems a bit desperate.

Re:

Thank you, Anonymous Coward!

As stated in the Kickstarter, I've been working in US book and magazine publishing for over 20 years, and just like every other business, there are simply some whips that must be internalized if one is going to work for Big Publishing. You don't get hired, much less promoted, unless you can play by certain understood rules.

Individually, the people are great--smart, love words, very funny--but corporate culture is a very risk-averse one. The firm's lawyers, to keep their job, must err on the cautious side; so the heads of the imprints, not wanting to make a high-profile mistake, err on the cautious side; and the junior editors (usually the ones handling comedy/entertainment) err on the cautious side. So privately they all LOVE The Onion, for example--but I can tell you that I spent 1991-1996 trying to launch something like it, and the lawyers were always the sticking point.

They gotta keep their jobs, and I respect that. But as a comedy writer, and specifically a print parodist, my interests are different. This is an experiment, and we'll see if it works. People liked the manuscript, it's well within the precedents I know of and have used successfully, and I like Downton, so I thought "What the heck?"

Re: how much could it cost to publish a book?

Hi FlTrem! The internet is full of annoying strangers asking for money, so I totally get your reaction.

It takes a huge amount of time to write, design, and publish a book properly. Many many days. And in this case, there are lots of people besides me that I have to pay, and a bunch of fixed legal and printing costs.

My wife and I set the funding bar as low as we could, because that gives us the best chance to make the goal. And also I am a Nigerian prince who requires your help to access Fifteen million one hundred thousand dollars (15,100,000USD).

Re: Ha!

Chris, have more faith in complete strangers you hear about via the internet. :-)

Of course I hope that people love the book and that it is a big success, like when I self-published Barry Trotter and the Unauthorized Parody in 2002. But that is a total long shot, as Barry was. The amount of money I'm asking for via Kickstarter is very much less than the kill fee I was offered.

My soul throbs with as much venality and self-interest as the next creature's, but I just couldn't take the kill. It would've encouraged the publisher to do the same thing the next time to some other writer; it would've shown all the students/young writers that I work with exactly the wrong message; and it would've kept a funny book from seeing the light of day. Plus, the kill wasn't THAT much.

Re: Parody should be iron clad

Salem, from a legal standpoint the US precedent protecting parody is strong--US publishers aren't afraid of losing on the law, they're afraid of having to spend more money than they'd make. So they all fold; which encourages each of them to threaten each other at the slightest hint of irreverence; and THAT makes what they publish much less funny. Which makes readers avoid humor books (other than The Onion, which is powerful enough to dictate terms), and funny writers go to outlets that are more free. It's an unvirtuous cycle--and it's one that could very well jump to other media. There's nothing special about TV or movies that guarantees they have more comic freedom--that is a cultural quirk after about 1965 or so. Prior to 1980, print comedy was MUCH freer, and the world didn't end; but the moment print started getting really weak financially, comedy was the first thing to go.

For now visual media are profitable enough for their owners to take risks with the comedy, but as the same fragmentation happens there as happened in books and magazines, the only thing that will keep wild, truly funny comedy around is clear audience preference for it. Over and over; in undeniable ways, like crowdfunding. The reason Stephen Colbert could make fun of Donald Trump last night is simply that Trump doesn't have enough money to really threaten Viacom. As the network model continues to morph, it's likely that crowdfunding will be the method of choice for comedy (see: Louis CK). And print needs it more than anywhere right now.

I'm no expert on law in the UK/Europe, but after Bored of the Rings (2001) and Barry Trotter (2002) were published without incident, there seemed to be movement towards US-style protection for parody.

Re: Re: Re: FUD?

@Troutfishing USA, I don't know why the publisher pulled out. Was it copyright? Was it merchandising? Was it a whisper across the tables at Elaine's? Was it prim outrage over my mention of Edwardian-era self-pleasuring devices? Who knows, the ways of publishers are mysterious.

Everybody told me the book was funny, and so I thought I'd put it out there. The Kickstarting is to pay for it to exist, and then if people enjoy it, it will sell. If not, it won't, and that's totally OK. I just didn't want to NOT publish it, for the sake of a dollar, or encourage the book business's fear of parody, which over the last 20 years has become a fear of comedy as a whole.